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Advanced Introduction to International Humanitarian Law

Robert Kolb

This innovative book provides a thought-provoking introduction to international humanitarian law (IHL). Robert Kolb explores the field through questions which are at times challenging and controversial in order to get to the very essence of the subject and give a fresh perspective. The result is an exposition both of the law as it stands, through its written and unwritten rules, and also of the uncertainties, gaps, controversies and practical problems which have arisen. IHL is revealed as a living tool, an ever-adapting means to an ever-remaining need of protection during times of armed conflict.
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8  Implementation of international humanitarian law: the Achilles heel of the system

Robert Kolb

Extract

The system of implementation of IHL1 has three main characteristics, which in turn produce one main result.

First, the system is based on voluntary and normative means of implementation. Hence, spontaneous compliance plays a greater role than external control and sanctions. The term “voluntary” connotes the idea that the belligerent is in most cases largely responsible for the implementation of the law itself. The means of implementation are based on the concept that some goodwill and cooperation by the single belligerent is needed in order for them to work. The term “normative” signifies that most means of implementation are based on the statement of a duty in some primary or secondary rule of IHL. Conversely, there are few actions of fact which could be imposed if the legal duties are breached. Both elements, the voluntary and the normative, converge in the concept of a consensual law on implementation. The system is subjective rather than objective. It largely depends on will rather than on coercion; it is self-centred rather than other-centred, in other words, autonomous rather than heteronomous.

Second, there is only a very feeble degree of direct sanction of IHL. Most means of sanctioning the breach of IHL rules are indirect. Thus, there is no institution which would have as a mission to control and enforce IHL rules. The ICRC displays such a function of control, and it is the sole international body specialized therein. But its functioning is particular, in the sense that it works...

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